State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0817

State of Minnesota,
Respondent,

vs.

Jacob Aaron Burk,
Appellant.

Filed December 27, 2021
Affirmed
Cochran, Judge

Dakota County District Court
File No. 19HA-CR-16-3003

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathryn M. Keena, Dakota County Attorney , Heather Pipenhagen , Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Pres iding Chief Judge; Cochran, Judge; and
Klaphake, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant challenges the district court’s order revoking his probation and executing
his sentence. He argues that the district court abused its discretion by finding that the need
for confinement outweighed the policies favoring probation. Because the evidence in the
record supports the district court’s finding and the district court did not abuse its discretion
in revoking probation, we affirm.
FACTS
In August 2016, respondent State of Minnesota charged appellant Jacob Burk with
first-degree assault causing great bodily ha rm, in violation of Minn. Stat. § 609.221,
subd. 1 (2016). The complaint alleged that Burk had punched a friend in the face multiple
times, causing skull fractures and a traumatic brain injury. Burk later admitted to the
assault during a pre-plea investigation. He stated that he had used methamphetamine and
Xanax on the day he committed the assault and that the mixture had caused “some type of
drug psychosis.”
In January 2017, Burk pleaded guilty. While awaiting sentencing, he was released
from jail to a chemical-depe ndency treatment program called Minnesota Adult and Teen
Challenge. After completing that program, Burk entered an extension of the program
called Teen Challenge Leadership Institute.
In March 2018, the district court sentenced Burk to 98 months in prison but stayed
that sentence and placed Burk on probation for 20 years. As conditions of his probation,
the district court ordered Burk to remain la w abiding, refrain from using or possessing
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alcohol or illegal drugs, submit to chemical-use testing, and continue in the leadership
program. The district cour t granted the downward dispositi onal departure based on its
finding that Burk was amenable to probati on and chemical-dependency treatment, as
demonstrated by his completion of the difficult Teen Challenge program.
Burk subsequently violated the terms of his probatio n multiple times before the
district court ultimately revoked his probation in April 2021 . The probation violations
resulted from Burk struggling to stay sober, having challenges with mental health, and
engaging in further criminal activity.
In March 2020, Burk’s probation officer f iled an initial probation-violation report
alleging that Burk violated the terms of his probation by using alcohol and failing to remain
law abiding. According to the report, Burk relapsed with alcohol and was charged with
two gross-misdemeanor driving-while-impaired (DWI) offenses. The report also indicated
that Burk was charged w ith obstruction of legal process. In June 2020, Burk’s probation
officer filed an addendum to the report alleging that Burk had used methamphetamine and
marijuana while enrolled in a mental-health program. In August 2020, another addendum
alleged that Burk had been using methamphetamine, heroin, marijuana, and alcohol over a
period of several weeks. A month later Bu rk’s probation officer filed a third addendum
providing an update that Burk had made si gnificant improvements and was “taking his
recovery very seriously.”
In September 2020, Burk ap peared before the district court and admitted to the
violations alleged in the March report and th e June and August addendums. The state
sought execution of Burk’s stayed prison sentence. The district court ultimately continued
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Burk on probation and imposed an additional probation condition of 60 days of electronic
home monitoring.
In December 2020, Burk’s probation offi cer filed a second pr obation-violation
report alleging that Burk had violated the terms of his probation by consuming alcohol on
his sober housing program’s cam pus. At a January 2021 hearing, Burk admitted to
possessing and using alcohol the day after he completed the 60 days of electronic home
monitoring. The state again sought executi on of Burk’s stayed prison sentence. The
district court imposed a one-day jail sanctio n so as to not inte rfere with Burk’s
mental-health medication regimen.
In March 2021, Burk’s probation officer fi led a third probation-violation report.
The report alleged that Burk had used alc ohol and methamphetamine, which led to his
discharge from his sober housin g program. The report further alleged that Burk had lied
about his alcohol and drug use to the district court and his probation officer at his most
recent review hearing. The pr obation report stated that Bu rk was no longer amenable to
probation and recommended that the district court execute Burk’s sentence.
At an April 2021 hearing, Burk admitted the violations and asked to return to an
inpatient chemical-dependency treatment pr ogram. The state again sought execution of
Burk’s stayed sentence.
The district court granted the state’ s request, revoked Burk’s probation, and
executed his sentence. The district court found that Burk’s violations were intentional and
inexcusable, noting that Burk had been given “not just one” but “many, many
opportunities” to address his chemical-dependency issues through treatment. The district
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court also found that the need for confinement outweighed the policies favoring probation
“specifically to protect the public.”
Burk now appeals.
DECISION
Burk argues that the district court abused its discretion when it revoked his stay of
execution because the record does not support the district court’s finding that the need for
confinement outweighed the policies favoring probation. We disagree.
“A district court has broad discretion in de termining if there is sufficient evidence
to revoke probation and should be reversed only if there is a clear abuse of that discretion.”
State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quotation omitted). A district court
“abuses its discretion when it acts arbitrarily, w ithout justification, or in contravention of
the law.” State v. Mix , 646 N.W.2d 247, 250 (Minn. App. 2002), rev. denied (Minn.
Aug. 20, 2002).
If an offender with a stay of execution admits a probation violation, a district court
may either continue the offender on prob ation or revoke proba tion and execute the
sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v). Before a district court can revoke
an individual’s probation, it must make thre e specific findings: (1) that the probationer
violated a specific condition of probation; (2) that the vi olation was intentional or
inexcusable; and (3) that the need for confin ement outweighs th e policies favoring
probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In making these findings,
commonly known as the Austin factors, “courts must seek to convey their substantive
reasons for revocation and th e evidence relied upon.” Modtland, 695 N.W.2d at 608.
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Whether a district court made the required Austin findings is a question of law that we
review de novo. Id. at 605.
Here, the district court considered each of the three Austin factors. Burk challenges
only the district court’s finding on the third Austin factor—that the need for his
confinement outweighed the policies favoring probation. When assessing this third factor,
a district court should balance whether: (1) “confinement is necessary to protect the public
from further criminal activity by the offender”; (2) “the offender is in need of correctional
treatment which can most effectively be provided if he is confined”; or (3) “it would unduly
depreciate the seriousness of the violatio n if probation were not revoked.” Id. at 607
(quotation omitted). A district court is not required to find th at all three considerations
weigh in favor of confinement in order for the third Austin f a c t o r t o b e m e t . See
Goldman v. Greenwood, 748 N.W.2d 279, 283 (Minn. 20 08) (stating that “we normally
interpret the conjunction ‘or’ as disjunctive rath er than conjunctive”). In balancing these
considerations, a district court may take into account the probationer’s original offense and
intervening conduct, as well as a prior grant of a downward dispositional departure. Austin,
295 N.W.2d at 251; State v. Fleming , 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d,
883 N.W.2d 790 (Minn. 2016).
In assessing the third Austin factor, the district court found that the need for
confinement outweighed the policy favoring probation, “specifically to protect the public.”
The district court then explained its concern about public sa fety: “You haven’t reacted in
anger because your [drug] use has not been able to escalate to where . . . that anger would
7
not be controlled.” The district court went on to say, “You’re out of treatment at this point;
that hasn’t worked out. And so at this time, this is the only option.”
Burk argues that the district court’s findings regarding the third Austin factor are not
supported by the record. Specifically, he contends that nothing in the record suggests that
his most recent probation violation of failing to abstain from drugs or alcohol put the public
at risk. He notes that the record does not establish that he used drugs or alcohol in public
or that he drove a motor vehi cle after using drugs or alcoho l. And he argues that “if
anything, subjecting [him] to non-rehabilitative imprisonment only harmed public safety
by preventing [him] from reducing his risk of re-offending through treatment.” The state
counters that the record supports the district court’s finding that confinement is necessary
to protect the public from further criminal activity by Burk. We agree.
As a preliminary matter, the first Modtland subfactor does not require that the
violation leading to revocation involve physical danger to another person; confinement
need only be necessary to protect the public from further criminal activity by the offender,
which could include Burk’s drug use alone. Modtland, 695 N.W.2d at 607. Further, in
assessing the third Austin factor, the district court could properly consider Burk’s original
offense and his intervening conduct in addition to his most recent probation violation. See
Austin, 295 N.W.2d at 251.
Second, the record fully supports the district court’s finding that Burk’s confinement
is necessary to protect the public from further criminal activity. The record reflects that
this was Burk’s third probation violation. A ll of Burk’s violations involved his use of
alcohol or illicit drugs. And Burk repeated ly engaged in criminal activity—namely,
8
driving while impaired, obstructing legal process, and using illicit drugs—while on
probation. Given the inherent danger to th e public posed by this criminal activity and
Burk’s history of engaging in aggressive behavior while using drugs—as demonstrated by
the severity of his original offense—it was not unreasonable for the district court to
conclude that Burk’s unconfined behavior crea ted a public safety concern. The fact that
probation was originally a downward dispositi onal departure further supports revocation
because “[l]ess judicial tolerance is urged for offenders who were convicted of a more
severe offense,” as Burk was here. Minn. Sent. Guidelines 3.B (2020).
Burk also argues that the district court erred by not explicitly considering or making
findings on the other two Modtland subfactors. This argument fails because a district court
may find the third Austin factor met based on just one of the Modtland subfactors.
Modtland, 695 N.W.2d at 606-07. Here, the distri ct court made sufficient findings as to
the third Austin factor because it addressed the first Modtland subfactor.
The district court has broad discretion in weighing the need for confinement against
the policies favoring probation, and the court re voked Burk’s probation as a last resort.
The record supports the district court’s de termination that the need for confinement
outweighed the policies favoring probation. Therefore, we conclude that the district court
did not abuse its discretion by revoking Burk’s probation and executing his sentence.
Affirmed.